COMMONWEALTH PENNSYLVANIA v. SANFORD BERNSTEIN (01/28/83)

No. 223 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal, No. 836 of 1979.

COUNSEL

A. Charles Peruto, Philadelphia, for appellant.

James B. Martin, Assistant District Attorney, Allentown, submitted a brief on behalf of Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Mcewen

[ 309 Pa. Super. Page 575]

We here review an appeal from a judgment of sentence to a term of imprisonment of from five to ten years and a fine of $25,000.00 imposed following a finding by a jury that appellant Sanford Bernstein was guilty of criminal solicitation to murder his then estranged wife. We vacate the judgment of sentence and remand for an evidentiary hearing.

Appellant first argues that the Common Pleas Court committed an abuse of discretion when it denied the motion for a new trial on the basis of after-discovered evidence, specifically, a recantation statement made by Jim Coleman, a principal Commonwealth witness and an acquaintance of both appellant and Mrs. Bernstein.*fn1 Coleman testified at trial that appellant told him, "I want you to blow my wife away" and asked Coleman to name his price. The next day Coleman informed Mrs. Bernstein and one of her private security guards about this conversation, and they in turn informed the Allentown Police Department.*fn2 Tony Padrone, an officer of the Catasauqua Police Department, and one of the number of private guards hired by Mrs. Bernstein, contrived with Coleman to arrange a telephone conversation between Coleman and appellant over which Padrone and two other officers, who also worked as private security guards for Mrs. Bernstein, might eavesdrop. In the presence of Officers Padrone, Layton and Alvin, Coleman advised appellant by telephone that he himself could not carry out the murder but that he could arrange for

[ 309 Pa. Super. Page 576]

someone else to do so, and pursuant to the plan of the officers, Coleman subsequently advised appellant that Alvin would be interested in the job. Coleman further testified that appellant subsequently discussed with Alvin, at an arranged meeting, the different methods of and fees for the murder of Mrs. Bernstein and delivered to Alvin the sum of $5,000.00 as partial payment for the murder.

The after-discovered evidence upon which the motion for new trial was based was a recantation statement made by Coleman in which he stated (1) that appellant only kidded about "blowing his wife away"; (2) that, following his meeting with appellant, appellant did not contact Coleman, but, rather, the law enforcement officials, who also acted as private security guards for Mrs. Bernstein, were the ones who suggested that Coleman get in touch with appellant; (3) that when appellant met Alvin, Coleman did not hear any discussion concerning a plan for the murder of Mrs. Bernstein; and (4) that the officers employed by Mrs. Bernstein had told him what to say.

Our Supreme Court has held that after-discovered evidence is the basis for a new trial if it:

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

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